People v. Carey , 36 Mich. App. 640 ( 1971 )

36 Mich. App. 640 (1971) 194 N.W.2d 93

PEOPLE
v.
CAREY

Docket No. 8555.

Michigan Court of Appeals.

Decided October 27, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

Gus Cifelli, for defendant on appeal.

Before: LESINSKI, C.J., and V.J. BRENNAN and O'HARA,^[*] JJ.

Leave to appeal denied, 386 Mich 785.

PER CURIAM.

Defendant, charged in Count I with possesion of a stolen motor vehicle (MCLA § 257.254 [Stat Ann 1968 Rev § 9.1954]) and in Count II with carrying a concealed weapon (MCLA § 750.227 [Stat Ann 1962 Rev § 28.424]), was convicted upon a jury verdict and appeals as of right.

We must reverse defendant's conviction for possession of a stolen motor vehicle on the authority of People v. Morton (1970), 384 Mich 38.

Regarding defendant's conviction for carrying a concealed weapon we find no error. The prosecution need not disprove statutory exceptions unless advanced by defendant. MCLA § 776.20 (Stat Ann 1971. Cum Supp § 28.1274[1]); People v. Jiminez (1970), 27 Mich App 633; People v. Gilleylen (1971), 31 Mich App 416.

No error lies in the prosecution's failure to affirmatively prove venue in view of defendant's failure to object. MCLA § 767.45 (Stat Ann 1954 Rev § 28.985); People v. Eugene Collins (1970), 28 Mich App 526.

Further, the evidence is sufficient to support the conviction.

Defendant's contention of misjoinder of counts was never presented to the trial court and is thus not preserved for appeal. MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016).

Reversed as to Count I and affirmed as to Count II.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.